Jeffery Ashcraft v. Headlee's Industrial Company, Inc.

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-432

DIVISION IV

JEFFERY ASHCRAFT

APPELLANT

V.

HEADLEE'S INDUSTRIAL COMPANY, INC.

APPELLEE

CA05-432

November 9, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[F 012942]

AFFIRMED

Robert J. Gladwin, Judge

Appellant Jeffery Ashcraft brings this appeal from the February 16, 2005 decision of the Workers' Compensation Commission (Commission) reversing the administrative law judge's (ALJ) finding that he was entitled to wage-loss disability benefits in the amount of twenty percent in excess of his twenty-percent permanent anatomical impairment rating. We affirm.

Appellant sustained an admittedly compensable back injury on October 24, 2000, when he fell approximately twenty feet from a water tower while performing work-related duties in his position as a sandblaster and painter for appellee Headlee's Industrial Company. There was a severe compression fracture of the L1 vertebral body, with an approximate fifty-percent loss of vertebral body height anteriorly and significant canal compromise. He was initially treated conservatively with a hard brace, which was unsuccessful and resulted in further collapse of his vertebral body and increasing kyphosis. Subsequently, on June 18, 2001, appellant underwent surgery, which consisted of an anterior L1 vertebrectomy and T12

to L2 fusion with autologous bone and allograft humeral strut and Z-plate instrumentation. He underwent a functional capacity evaluation on July 19, 2002, at which time he had discontinued taking any pain medication and had completed a neurologic exam that was normal. Appellant was assessed with a twenty-percent permanent anatomical impairment rating, and the parties stipulated that his healing period ended on August 14, 2002.

It is undisputed that the appellees offered some level of vocational rehabilitation counseling through Ms. Terry Owens, a rehabilitation case manager, though the extent to which services, including job placement assistance, were offered is in dispute. Appellant did not participate in the suggested training and declined to meet with Ms. Owens to discuss alternative rehabilitation efforts. Bob White, an independent vocational specialist, conducted an additional vocational assessment for appellant's attorney on December 23, 2003, stating that he thought appellant could perform sedentary work1 but would need re-training to be employable.

Appellant asserted that he was either permanently and totally disabled, or at a minimum, that he was entitled to wage-loss disability benefits substantially in excess of his permanent impairment rating. Appellees contended that he was barred from receiving these benefits under Ark. Code Ann. § 11-9-505(b)(3) because he refused to participate in the recommended program of vocational rehabilitation. A hearing was held before the ALJ on February 23, 2004, and appellant was awarded a twenty-percent wage-loss disability impairment in addition to his twenty-percent permanent anatomical impairment rating. Appellees appealed to the Commission, asserting that the ALJ misapplied the law, applying provisions that were in existence prior to the passage of Act 796 in 1993. The Commissionreversed the ALJ, finding that appellant waived and refused to participate in or cooperate with an offered program of rehabilitation and job placement assistance, and accordingly, was precluded from receiving wage-loss disability in excess of his anatomical impairment. This appeal followed.

In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Swearengin v. Evergreen Lawns, 85 Ark. App. 61, 145 S.W.3d 830 (2004). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Id. The issue is not whether this court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.

In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Workers' Compensation Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity. Ark. Code Ann. § 11-9- 522(b)(1). Pursuant to this statute, when a claimant has been assigned an anatomicalimpairment rating to the body as a whole, the Commission has the authority to increase the disability rating, and it can even find a claimant totally and permanently disabled based upon wage-loss factors. Lee v. Alcoa Extrusion, Inc., ___ Ark. App. ___, ___ S.W.3d ___ (Jan. 26, 2005). The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Whitlatch v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). The Commission is charged with the duty of determining disability based upon consideration of medical evidence and other matters affecting wage loss, such as those enumerated in Ark. Code Ann. § 11-9-522(b)(1). See id. In considering factors that may affect an employee's future earning capacity, the court considers the claimant's motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant's loss of earning capacity. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).

It is undisputed that appellant began working with Ms. Owens in April 2003. Appellant asserts that no rehabilitation plan was offered by the appellees and that the contact between Ms. Owens and himself was investigative only. Ms. Owens readily admitted that they were in the initial stages of planning for his rehabilitation plan, explaining that there are numerous meetings and discussions regarding potential interview and job-skills training, identifying potential employers, practicing filling out employment applications, examining possibilities of other training programs that must occur prior to an individualized "plan" being put into place. Ms. Owens was unable to complete this initial level of vocational rehabilitation and job placement assistance for appellant because he abruptly halted their communication and planned meetings. She also explained that the concept of a plan "may be misconstrued as something that is written and signed and agreed upon by all the parties." There is no statutory provision requiring a specific written plan.

Appellant strongly urges that he did seek rehabilitative services but that he simply chose to employ the services of someone other than one under the control of appellees' agent. Ms. Owens' report dated April 2, 2003, recommended that appellant seek rehabilitation services either through her company or through the state rehabilitation system; however, appellant's assertion that he pursued the latter by contacting and receiving services from the Arkansas Department of Rehabilitation Services does little to support his argument on appeal. Appellant admitted that he made just one visit to the Rehabilitation Center and one visit to the Employment Office, both located in Pine Bluff, Arkansas, over the course of a three and a half year period. He claims that he could not have done more because his father, who provided his only mode of transportation, was in ill health in the hospital and unable to transport him to such meetings. Appellees point out how this assertion is rather illogical when Ms. Owens had offered to drive to appellant's home to meet with him, show him a training video series, and discuss potential opportunities for training and potential employment. Her services were free of charge, just as the government services, and she would have monitored potential job openings for him and specifically tailored the plan to his needs.

Appellees also point out that a functional capacity evaluation (FCE) was ordered and performed by Dr. Maurice Smith on July 19, 2002, which determined that appellant was capable of performing work in the medium duty, rather than merely the light duty, category. Dr. Smith then subsequently revised appellant's work restrictions on March 19, 2003, at appellant's request, from medium to light duty, despite CT scans that showed no changes from his prior condition since his last visit to Dr. Smith on August 14, 2002. Appellant's first interview with Ms. Owens was March 11, 2003, barely a week prior to Dr. Smith revising appellant's work restrictions. Appellees maintain that it is clear that, upon realizingthat they were moving forward with rehabilitation services and offering to assist appellant in returning to work, he immediately obtained a change in his work status that he felt would further limit his employability and assist in his wage-loss claim.

The Arkansas General Assembly declares public policy in the realm of workers' compensation. Ark. Const. of 1874, art. 5, § 32, amended by Ark. Const. amend. 26. Whether a law is good, bad, wise, or foolish, is a question for the General Assembly, not the Arkansas Judiciary or Workers' Compensation Commission. See Longstreth v. Cook, 215 Ark. 72, 220 S.W.2d 433 (1949). The General Assembly has declared that if the scope of the workers' compensation statutes needs to be liberalized, broadened, or narrowed, this shall be addressed by the General Assembly and not by the Commission or Judiciary. See Ark. Code Ann. §11-9-1001.

Act 796 of 1993, as codified at Ark. Code Ann. §11-9-505 (Supp. 1999), provides in part:

(b)(3) The employee shall not be required to enter any program of vocational rehabilitation against his consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance shall be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.

In order for appellees to rely upon the defense enumerated in Ark. Code Ann. §11-9-505(b)(3), they must show that appellant refused to participate in a program of vocational rehabilitation or job placement assistance, or, through some other affirmative action, indicated an unwillingness to cooperate in those endeavors, and that such refusal to cooperate was without any reasonable cause. See Burris v. L & B Moving Storage, 83 Ark. App. 290, 123 S.W.3d 123 (2003). It is apparent that appellant halted all attempts for vocational rehabilitation offered by appellees at the very earliest planning stages without even exploring what options might be available to him.

We are required to view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and affirm if the decision is supported by substantial evidence. The evidence in the present matter shows that the claimant refused to cooperate with appellees' offered program of rehabilitation, that the claimant indicated an unwillingness to pursue the endeavor of vocational rehabilitation, and that such refusal to cooperate was without any reasonable cause. Accordingly, the Commission's opinion displays a substantial basis for the denial of relief.

Affirmed.

Robbins and Baker, JJ., agree.

1 Appellant had a general education diploma, was twenty-eight years old at the time of the accident, and basically had worked solely in manual labor jobs, some of which required heavy lifting.